Kew v. Burlington

Kew v. Burlington

The municipality lost authority to maintain the additional assessment once the legislature retroactively amended s.43; that withdrawal of authority made continued collection wrongful and entitled the appellant to repayment; the statutory appeal machinery and limitation periods did not bar an action in a court of...

Source-derived case information.

Citation
[1980] 2 SCR 598
Parties
Plaintiff / Appellant: Kew Property Planning and Management Limited; Defendant / Respondent: The Corporation of the Town of Burlington
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
22 April 1980
Procedural Posture
Taxation Appeal / Final Appeal to the Supreme Court of Canada From the Ontario Court of Appeal
Outcome
Appeal allowed; orders of the Court of Appeal and Divisional Court set aside; judgment for appellant entered in principle
Legal Topics
Assessment Law, Retroactive Legislation, Limitation Periods, Res Judicata and Issue Estoppel, Recovery of Improperly Collected Taxes, Notice Requirements
Source Language
english
Taxation Administrative Law Municipal Law Civil Procedure Statutory Interpretation Assessment Law Retroactive Legislation Limitation Periods +3 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Kew Property Planning and Management Limited

Plaintiff / Appellant

The Corporation of the Town of Burlington

Defendant / Respondent

Procedural Posture

Taxation Appeal / Final Appeal to the Supreme Court of Canada From the Ontario Court of Appeal

Legal Issues

  1. 1 Whether the municipality had authority after the retroactive July 23, 1971 amendment to maintain the additional assessment and to retain taxes collected
  2. 2 Whether limitation periods and prior administrative appeals under The Assessment Act and related decisions rendered the appellant's claim res judicata or barred recovery
  3. 3 Whether the administrative appeal machinery ousted a court of general jurisdiction from declaring an assessment void and ordering repayment

Ratio Decidendi

The municipality lost authority to maintain the additional assessment once the legislature retroactively amended s.43; that withdrawal of authority made continued collection wrongful and entitled the appellant to repayment; the statutory appeal machinery and limitation periods did not bar an action in a court of general jurisdiction to declare the assessments null and recover taxes paid, and prior administrative decisions did not constitute res judicata on the nullity claim.

Court Disposition

Appeal allowed; orders of the Court of Appeal and Divisional Court set aside; judgment for appellant entered in principle

Orders

  • Set aside the orders of the Ontario Court of Appeal and the Divisional Court and restore the order of Donohue J. in Weekly Court
  • Judgment entered for the plaintiff in the amount of $88,624.82 to be repaid by the defendant